Just over a year after the New Jersey Supreme Court changed the standard to be applied in removal, or interstate relocation, cases, the Appellate Division in Dever v. Howell (an Appellate Division set to be published and, thus, will be precedential) is here to remind us that the burden to show cause for the proposed removal is not optional, cannot be an afterthought, and cannot be shifted to the party who opposes the move.
N.J.S.A. 9:2-2’s Cause Requirement and Bisbing
As a refresher, N.J.S.A. 9:2-2 is the New Jersey statute that addresses intrastate removal and provides as follows:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.
Put another way, if you wish to relocate out of New Jersey with your children, but the other parent does not agree, then the only way that you can engage in the desired removal is to file an application with the Court. The Court may only grant the application if sufficient “cause” for the move is shown. The purpose of the cause requirement is to preserve the rights of the other parent and the relationship between that parent and the children.
The definition of “cause” was the subject of the much-talked about August 2017 New Jersey Supreme Court decision, Bisbing v. Bisbing, 230 N.J. 309 (2017). Prior to Bisbing, “cause” meant different things depending on whether the party who sought to remove the children out of state was the parent of primary residence for the children, or whether there was a truly shared parenting arrangement. Under the now defunct Baures v. Lewis standard, the Parent of Primary Residence had a less onerous burden to show cause, and needed only prove that 1) the requested move was being sought in good faith; and 2) that the requested move would not be inimical to the child’s best interests. In cases where there was truly a shared parenting arrangement (i.e. neither party was deemed the “parent of primary residence”), a request to relocate with the children was treated as an application to modify the existing custody arrangement, and the court was required to conduct a best interests analysis to determine if such a modification was appropriate; if so, then this would serve as sufficient “cause.”
In Bisbing, the Court did away with these distinctions and essentially leveled the “cause” playing field. Now, regardless of the type of parenting arrangement in place, “cause” is demonstrated by showing that the proposed move is in the best interests of the child. In making this determination, the Court is to be guided by the statutory factors outlined in N.J.S.A. 9:2-4 which are the lodestar of every custody determination; however, the court is not limited to these factors in its analysis. Indeed, the Bisbing Court specified that “[a] number of the statutory best interests factors will be directly relevant in typical relocation decisions and additional factors not set forth in the statute may also be considered in a given case.” Any “additional” factors would be specific to the circumstances of the individual case.
Dever v. Howell and the Cause Requirement in Action
In a newly published (i.e. precedential) decision, the Appellate Division examined the cause requirement. In this case, Mr. Dever and Ms. Howell had two children together. Although Mr. Dever was the parent of primary residence, the parties shared joint legal custody. In 2015, Mr. Dever considered relocating to Florida with the children, and the parties engaged in negotiations around that proposed move, including a parenting time schedule for Ms. Howell. Although they were able to enter into an agreement in May 2015 regarding Mr. Dever’s proposed move to Florida with the children, ultimately he chose not to go, and he and the children remained in New Jersey.
In November 2016, Ms. Howell filed an application with the Court seeking overnight parenting time with the children. The parties began to negotiate, and agreed to ask the Court to wait to hear Ms. Howell’s application in the hopes that they could resolve the issues amicably. However, three days before the judge was to hear the motion, Mr. Dever told Ms. Howell that he and the children would be moving to South Carolina the next morning. He offered Ms. Howell ten minutes to say goodbye to the children. Despite Ms. Howell vehemently objecting, he moved the children to South Carolina without her consent, and without a court order permitting him to do so.
Ms. Howell ultimately filed an Order to Show Cause (an application seeking emergent, or immediate, relief from the Court) seeking the return of the children to New Jersey. After a trial, the Superior Court judge found that Mr. Dever had intentionally removed the children from New Jersey without Ms. Howell’s consent and without filing an application so that the Court could determine whether there was cause for the move, in violation of N.J.S.A. 9:2-2. The Court (correctly, in this writer’s opinion) found that the May 2015 agreement that the parties entered into for the removal of the children to Florida did not signify an agreement for them to be removed to South Carolina, as Mr. Dever claimed. The judge ordered Mr. Dever to return the children to New Jersey.
Mr. Dever asked the Superior Court to reconsider his decision and, when that was unsuccessful, Mr. Dever appealed. In both cases, he argued that the judge could not compel him to return the children to New Jersey from South Carolina without requiring Ms. Howell to show cause for him to do so. In other words, he argued that – now that the children had been living in South Carolina for some time – the burden to show cause should shift to Ms. Howell to show that it was in the children’s best interests to return to New Jersey. On appeal, Mr. Dever argued that N.J.S.A. 9:2-2 did not require him to obtain an order before moving.
The Appellate Division, rightfully, shot down Mr. Dever’s claim that he could remove the children without consent or a court order, and then force the other parent to demonstrate that it is in the children’s best interests to return to New Jersey:
According to plaintiff’s logic, defendant would need to file a motion to return the children, who he had removed in violation of N.J.S.A. 9:2-2, and as part of that motion, assume the burden. Such an approach would encourage individuals to first remove children from this jurisdiction, then later seek court approval. When the other parent objects beforehand, the process envisioned by N.J.S.A. 9:2-2 is for the parent seeking to relocate to first apply for an order permitting relocation, establish “cause,” then relocate only if permitted by the court. The process does not permit a parent to show on an application to return the children that it would be in their best interests to do so.
When the other parent objects, the parent seeking removal of the children has the ultimate burden of proof by the preponderance of the evidence. Requiring the burden of proof to shift to defendant to show that it would be in the children’s best interests, as a condition precedent to returning them to New Jersey, ignores the Legislature’s reason for requiring a preliminary determination of “cause” under N.J.S.A. 9:2-2 before the actual removal. It is to “preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.” Bisbing, 230 N.J. at 323 (citations and internal quotation marks omitted). Under the facts of this case, preserving defendant’s rights to maintain and develop her familial relationship with the children required – by the plain text of N.J.S.A. 9:2-2 – that plaintiff first obtain an order, before removing the children, by showing “cause” existed for the relocation to South Carolina.
The Appellate Division made clear here that the old adage, “act now, and ask forgiveness later” does not apply in removal cases. In order to carry out the intent of the statute – to preserve the relationship between the non-custodial parent and the child – one has to either obtain consent, or show cause before a court before the move occurs, not after.
Parents considering an interstate relocation with their children from New Jersey should take heed. If you move with your children out of New Jersey without obtaining consent or a court order, you will very likely be required to return the children. But even worse, when the Court ultimately does decide the issue of whether the move is in the children’s best interests, it may ding you for having taken matters into your own hands and moved without going through the proper channels. Arguably, a failure to do so is a good indicator to the Court that you are not willing to co-parent or consider the child’s relationship with the other parent, and that will undoubtedly cause the Court to hesitate to allow the move.